PEOPLE v. CHURBY

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Supreme Court, Appellate Division, Second Department, New York.

The PEOPLE, etc., respondent, v. Andrew E. CHURBY, appellant.

Decided: September 27, 1999

LAWRENCE J. BRACKEN, J.P., FRED T. SANTUCCI, MYRIAM J. ALTMAN, WILLIAM D. FRIEDMANN and HOWARD MILLER, JJ. David L. Rich, Hawthorne, N.Y., for appellant. Francis D. Phillips II, District Attorney, Goshen, N.Y. (Andrew R. Kass of counsel), for respondent.

Appeal by the defendant from a judgment of the County Court, Orange County (Pano Z. Patsalos, J.), rendered September 9, 1998, convicting him of operating a motor vehicle while under the influence of alcohol, as a felony, upon his plea of guilty, and imposing sentence.   Assigned counsel has submitted a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493, in which he moves to be relieved of the assignment to prosecute this appeal.

ORDERED that the motion is granted, David L. Rich is relieved as attorney for the defendant, and he is directed to turn over all papers in his possession to new counsel assigned herein;  and it is further,

ORDERED that Edward McBride, Jr., P.O. Box 639, 40 Park Place, Goshen, N.Y. 10924, is assigned as counsel to perfect the appeal;  and it is further,

ORDERED that the People are directed to furnish a copy of the stenographic minutes to the new assigned counsel;  and it is further,

ORDERED that new counsel shall serve and file a brief on behalf of the defendant within 90 days of the date of the decision and order and the People shall serve and file their brief within 120 days of the date of this decision and order;  by prior decision and order of this court, the defendant was granted leave to prosecute the appeal on the original papers (including the typewritten stenographic minutes) and on the typewritten briefs of the parties, who were directed to file nine copies of their respective briefs and to serve one copy on each other.

Based upon the court's independent review of the record, we conclude that nonfrivolous issues exist with respect, inter alia, to whether the County Court erred in imposing a longer sentence than the one promised without allowing the defendant the opportunity to withdraw his plea of guilty and as to whether the sentence should be reduced to conform with the plea agreement.

MEMORANDUM BY THE COURT.

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